Central Administrative Tribunal - Jaipur
Dr Pooja Mittal vs Employees State Insurance Corporation on 12 September, 2017
j | Central Administrative Tribunal Jaipur Bench, Jaipur O.A. No. 348/2017 M.A. No.434/2017 Reserved on :12.09.2017 Pronounced on :4. \o. 2«\7. Hon'ble Mr. Kailash Nath Shrivastava, Member (A) Hon'ble Mr. Suresh Kumar Monga, Member (J) Dr.Pooja Mittal, W/o Sh. Amit Singhal, aged about 41 years resident of C-9/669, First Floor, Chitrakoot, Jaipur-302021. presently posted as Chief Medical Officer, Employees State gue Insurance Corporation Model Hospital, Ajmer Road, Jaipur- 302006. . Applicant. (By Advocate: Shri Abhishek Sharma) Union of India through the DG/PS, Employees State - Corporation, Insurance, Ministry of Labour & Employment, Government of India Panchdeep Bhawan, I.G. Road, New Delhi. The Medical Superintendent, Employees State Insurance 2. corporation, Laxmi Nagar, Ajmer Road, Jaipur-302006. or. Vijay Kumar Maru, IMO Grade-I, presently posted at 3. MDDC, Jnunjhunu. ..Respondents. (BY advocate: Shri T.P.Sharma) ORDER
shri suresh Kumar Monga:
grieved by the order dated 24.05.2017 passed by Ag dent No.2 vide which she has been ordered to be respon (OA No.348/2017) (2) transferred from Employees State Insurance Corporation Model Hospital (ESICMH), Jaipur to MDDC, Jhunjhunu, the applicant has invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985.
2, Briefly stated, the facts of the case are that the applicant was initially appointed as Insurance Medical Officer Grade-II on 27.01.2006 and was posted at ESICMH, NOIDA. While holding the _ said post, she also obtained Post Graduate Diploma in Paediatrics (DCH) from Maharshi Dayanand University, Rohtak. She was transferred to ESICMH, Jaipur where on the basis of her speciality, she was assigned the duties in Paediatrics Wing of the said Hospital. At present, she is holding the post of Chief Medical officer in the Paediatrics Wing of ESICMH, Jaipur. Vide order dated 24.05.2017, she has been ordered to be transferred from ESICMH, Jaipur to MDDC, Jhunjhunu. Aggrieved by the said der the applicant has filed the instant OA.
Oo / 3 The applicant's grievance is that she has been illegally and epitrarily transferred from ESICMH, Jaipur to MDDC, Jhunjhunu. a r contention that she has been ordered to be transferred it is he mn Jaipur to Jhunjhunu in order to accommodate Respondent fro 3, who was working as Insurance Medical Officer at No.2:
It has been averred that she is holding the post of (OA No.348/2017) (3) Chief Medical Officer in ESICMH, Jaipur and looking after paediatrics Wing of the said Hospital and the place where she has been transferred, there is no post of a Speciality in Paediatrics. It has further been averred that the Respondent No.3 has already been selected for M.D. Diploma Course in Anesthesia and in order to pursue his higher studies, he will be relieved to join the Medical College at Bikaner soon. It is her case that number of » Doctors at ESICMH, Jaipur are having much longer stay in comparison to her and there was no administrative exigency to transfer her from Jaipur to Jhunjhunu. She has further pleaded that her husband Dr. Amit Kumar Singhal is running a Hospital at Jaipur and cannot leave his work place and she is having two children of the age 6 years and 2 years and, therefore, in view of the policy guidelines circulated vide DoP&T OM No.28034/2/97- estt.(A) dated 42.06.2997, she cannot be transferred from Jaipur to Jhunjhunu. Therefore, she has prayed for the following reliefs:
"(j) The Hon'ble Tribunal may be pleased to call for the original record of the case and after examining the same be pleased to quashed and set aside the impugned order dated 54.05.2017(Annexure- 1) by which the Applicant has been transferred from Employees State Insurance Corporation Model Hospital, Ajmer Road, Jaipur to MDDC, Jhunjhunu, so far as it relates to the Applicant.
(OA No.348/2017) (4)
(ii). The respondents may kindly be further directed to allow the Applicant to continue on the post of CMO at ESIC Model Hospital, Jaipur.
(iii). Any other prejudicial order to the interest of the applicant, if any passed during the pendency of the application, may kindly be taken on record and be quashed and set aside."
4. The Respondent Nos.1 and 2 by a common reply have resisted the Original Application by denying all the allegations, _ averments, contentions and grounds raised therein. It is stated that the applicant has been transferred from Jaipur to Jhunjhunu on administrative grounds considering the exigency of service. The transfer order of the applicant has been issued in public interest by the competent authority and does not require any interference by the Tribunal as the Department is free to utilise the services of its employees as per its requirement. It has eurther been averred that the services of the applicant can be utilized at any place of posting which is controlled by the : espondents. Further case of the respondents is that a Doctor having specialization in any medical field can be transferred considering the exigency of department and its smooth ther place in the State.
We have carefully gone through the pleadings of the parties, uments relied upon by them in support of their rival (OA No.348/2017) (5) contentions and have also given our thoughtful consideration to the oral submissions advanced before us by their learned counsel.
6. Shri Abhisekh Sharma, learned counsel for the applicant at the very outset contended that the applicant, who is presently working on the post of Chief Medical Officer in ESICMH, Jaipur, and holding a speciality diploma in Paediatrics, is looking after the paediatrics Wing of the said Hospital. She has been ordered to be " transferred to a Dispensary at Jhunjhunu against the post of Insurance Medical Officer. His contention is that the applicant cannot be transferred against a post lower in rank than the post which she is holding in ESICMH, Jaipur. His further contention is that the applicant cannot be transferred to a place where there is no post of a speciality available.
7 Learned counsel further contended that the transfer of the applicant is contrary to the policy guidelines circulated vide poPat OM No.28034/2/97-Estt.(A) dated 12.06.1997. He drew our attention to Clause-2 and 3 of the said OM and contended that since the applicant's husband is also running a Hospital at Jaipur and they have got two minor children, therefore, the respondents ought not to have ordered for her transfer in view of the said OM.
(OA No.348/2017) (6)
8. Per contra, learned counsel for the respondent nos. 1 and 2 argued that the post of Chief Medical Officer and Insurance Medical Officer are having the same nature of duties. He said that the applicant was given the benefit of Grade Pay of Rs.7600/- in PB-3 under DACP Scheme on the recommendations of the Departmental. Promotion Committee which cannot be termed as a regular promotion to the post of Chief Medical Officer gy and thus the applicant could well be transferred from ESICMH, ae wot Jaipur to MDDC Jhunujhunu. It is further contended that the applicant has not been promoted as Chief Medical Officer. He further contended that the pay and status of the applicant would remain the same on her transfer as the substantial post of the applicant is Insurance Medical Officer Grade-I. Learned counsel for the respondents further argued that the policy guidelines ;gsued by the DoP&T in the matter of transfers can be ignored in the interest of exigency of service. The applicant has been transferred purely on administrative grounds from ESICMH, Jaipur to MDDC Jhunujhunu. Thus, he prayed for dismissal of the OA.
9 During the course of arguments, a question emerged as to whether the applicant was granted promotion to the post of Chief Medical Officer oF not. Learned counsel for the applicant was (7) directed to produce a Copy of such order by which the applicant was promoted to the post of Chief Medical Officer.
10. The arguments were heard on 12.09.2017 and the order was reserved. Learned counsel for the applicant was given two days' time to place on record a copy of the promotion order of the applicant to the post of Chief Medical Officer.
41. Learned counsel for the applicant on 13.09.2017 produced a CO spy of the order dated 04.08.2016 along with additional affidavit. A perusal of the order dated 04.08.2016 passed by the Director-General of Employees State Insurance Corporation reveals that the applicant, who was working as Insurance Medical Officer Grade-I in the Grade Pay of Rs.6600/- PB-3, was granted promotion to the Post of Chief Medical Officer in Grade Pay of Rs.7600/- in PB-3 under DACP Scheme on the recommendations e Departmental Promotion Committee. The said promotion of th was granted to the applicant with effect from 24.07.2015. Clause-3 of the promotion order further reveals that on promotion, the pay fixation of the applicant was to be done under rule 13(1) of the Revised Pay Rules, 2008 with effect from the date of appointment to the new post.
12. $0 far as the power of judicial review vested in this Tribunal ro interfere in the matter of transfer of Government employee is (OA No.348/2017) (8) concerned, the same is well settled through a catena of judicial pronouncements of the Hon'ble Apex Court. It is obvious that the employer has right to transfer his employees for smooth administration. However, this right is not unfettered. The Department has to meet test of reasonableness and observance of the provisions of transfer policy/guidelines/statutory rules, if any, and that such order needs to be issued by the competent authority only.
13. In the present case, the applicant, who was given promotion from Insurance Medical Officer Grade-I to the post of Chief Medical Officer and was assigned the job to look after the paediatrics Wing of the Hospital, could not have been ordered to be transferred to MDDC, Jhunjhunu against a post lower in rank to the post held by her. Adverting to other arguments of the ip earned counsel for the applicant that the respondents could not have ordered the transfer of the applicant contrary to the DoP&T OM dated 12.06.1997. The relevant clauses of the said OM are reproduced herein as under:
"The Government, after considering the matter, has decided to accept this recommendation of the Fifth Pay Commission. Accordingly, it is ed that. all Ministries/Departments should strictly adhere to the guidelines laid down in OM 4/7/86-Estt(A) dated 3.4.86 while decidin No.28034/7/ or posting of husband and wife x (OA No.348/2017) (9) the same station and should ensure that such posting is invariably done, especially till their children are 10 years of age, if posts at the appropriate level exist in the organization at the same station and if no administrative problems are expected to result as a consequence.
3.1It is further clarified that even in cases where only the wife is a government servant, the concession elaborated in para-1 of this OM would be admissible to the government servant."
Though the policy guidelines issued by the Government in the G27 natter of transfer can be deviated in the exigency of service but in the case in hand, the terms of OM ought to have been viewed by the competent authority -looking towards the speciality of the applicant and being designated as Chief Medical Officer apart from her family circumstances.
14. The judgment of the Hon'ble Supreme Court in the case of Rajendra Singh & Ors. vs. State of Uttar Pradesh (2009) 15 <i ecc 178 elied upon by the learned counsel for the respondents hall not apply in the facts and circumstances of the case as in S that case, the Hon'ble Supreme Court was dealing with a case where the Hon'ble High Court of Allahabad, while quashing the transfer order, went into the question of competence and suitability of an employee. The Hon'ble Supreme Court thus pserved that only question which was required to be seen was O hether the transfer of the employee was actuated with malafide w 2 ay ap (OA No.348/2017) (10) or otherwise in violation of statutory rules. Here in the case in hand, the applicant who Is admittedly working as Chief Medical Officer after getting a promotion from the post of Insurance Medical Officer Grade-1 cannot be asked to work on a lower post of Insurance Medical Officer. Though it has been submitted by the learned counsel for the respondent nos.1 and 2 that the applicant will be drawing the same pay and she will be enjoying iB avith "same status with same designation on the transferred post but the pleadings remain silent about the fact as to whether actually the respondents have a post of Chief Medical Officer at Jhunjhunu or not. The action of the respondent nos.1 and 2 is palpably illegal and thus the order of transfer of the applicant from ESICMH, Jaipur to MDDC Jhunujhunu cannot be sustained.
15. From the above discussions, it is obvious that although the plicant is said to have been transferred in public interest, the im pugned order can safely be termed to be arbitrary and improper: We thus hold -- that the order dated 34,05.2017(Annexure-1) transferring the applicant from ESICMH, Jaipur to MDDC, Jhunjhunu is illegal and arbitrary and the same deserves to be quashed.
(OA No.348/2017) (11)
16. Resultantly, the impugned transfer order dated 24.05.2017 (Annexure-1) is hereby quashed and set aside. The OA is allowed. However, there shall be no order as to costs. _ < "NX = Le | (Suresh'Kumar Monga) 'Gdilaich Nath Shrivastava ) Member (A) Member (J) /kdr/